CHAMIZO

                                                  Interim Decision #2016




                           MATTER OF CHAMIZO

                       In Deportation Proceedings
                                A-11385946
                 Decided by Board November 28, 1969

Since the Service regulations require that in deportation proceedings an
  order be entered which will result in the proceedings being processed to a
  final conclusion, the special inquiry officer's grant of indefinite voluntary
  departure, without more, after a finding of respondent's deportability, was
  in error, and the case is remanded by the Board to the special inquiry officer to set a time within which such voluntary departure shall take place,
  to include an alternate order of deportation, and for a decision on respondent's application for withholding of deportation under section 243(h)
  of the Immigration and Nationality Act.
CHARGE:
  Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Entry
                      without inspection.
ON BEHALF Or SERVICE: R. A. Vielhaber
                           Appellate Trial Attorney
                           Henry J. Scroope, Jr.
                           Trial Attorney
                           (Brief filed)


   The special inquiry officer has certified his decision to use for
consideration and final determination. In his decision of September 4, 1968, he found the respondent deportable as charged and
denied her application for adjustment of status to that of a permanent resident pursuant to the provisions of section 1 of the
Act of November 2, 1966, P.L. 89-732 (commonly referred to as
the Cuban Refugee Act). He granted the respondent the privilege
of voluntary departure but did not set any date within which
such departure must be effected. Because of granting voluntary
departure for an indefinite period of time, he did not enter an alternate order of deportation. There was pending before him an
application for withholding of deportation to Cuba pursuant to
section 243(h) of the Immigration and Nationality Act, but such
application was not acted upon in view of his decision. Although

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the case is before us on rectification by the special inquiry officer,
the Immigration and Naturalization Service filed a separate appeal to the decision contending that it was wrong on the law and
the facts.
    The respondent is a 42-year-old married female alien, a native
and citizen of Cuba, who arrived in the United States at Laredo,
Texas on October 15, 1959, having entered the country without
being properly inspected and admitted as an alien. At the original
deportation hearing, held on November 19, 1959, she admitted all
of the allegations of fact contained in the order to show cause
ind conceded deportability. At that time, she was ordered de-
)orted from the United States. No discretionary relief was
 ;ranted because none was requested. The proceedings were re-
 )pened in 1967 so that respondent could apply for adjustment of
 ;tatus under the recently enacted Cuban Refugee Act.
   

provides as follows:
 Notwithstanding the provisions of section 245(c) of the Immigration and
Tatonality Act, the status of any alien who is a native or citizen of Cuba
,


nd who has been inspected and admitted or paroled into the United States
ubsequent to January 1, 1959 ... may be adjusted by the Atttorney General
.. to that of an alien lawfully admittted for permanent residence ... (emhasis supplied).
      Since the respondent admittedly entered the United States
    ithout inspection, she was not eligible for adjustment of status
    nder this law and the special inquiry officer was correct in denyig her application. Her entering without inspection also renders
       deportable as charged.'
      We will not disturb the special inquiry officer's decision to exnd to the respondent the privilege of voluntary 'departure. We
    I, however, find error in his granting such voluntary departure

     r an indefinite period of time and his failure to enter an alterle order of deportation. When voluntary departure is granted
     irsuant to the provisions of section 244 (e) of the Act, it is
     r:umbent upon the special inquiry officer in accordance with 8
     iT 244.1 to set a time within which such departure shall take
     ice, and he is further required by 8 CFR 242.18(c) to enter an
     der which will lead to a final concluding of the deportation proHlings. These sections of law are as follows:
                                  8 CFR 244.1
    ?ursuant to Part 242 of this chapter and section 244 of this Act, a special
    uiry officer in his discretion may authorize the suspension of an alien's
    )ortatiton, or if the alien establishes that he is willing and has the immedi-

     See Matter of Estrada-Betancourt, 

 (B.I.A., 1967).

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ate means with which to depart promptly from the United States, a special
inquiry officer in his discretion may authorize the alien to depart voluntarily
from the United States in lieu of deportation within such time as may be
specified by the special inquiry officer when first authorizing voluntary departure, and under such conditions as the District Director shall direct. (emphasis supplied)
                                8 CFR 242.18(c)
                       Order of the Special Inquiry Officer
   The order of the special inquiry officer shall direct the respondent's deportation, or the termination of the proceedings, or such other disposition of the
case as may be appropriate. When deportation is ordered, the special inquiry
officer shall specify the country, or countries in the alternate, to which
respondent's deportation shall be directed. The special inquiry officer is authorized to issue orders in the alternate or in combination as he may deem
necessary.
   We hold that 8 CFR 242.18 (c) requires that in deportation proceedings an order be entered which will result in the proceedings
being processed to a final conclusion, whether by the deportation
of the alien, the termination of proceedings or the granting of
some form of discretionary relief as provided in the Act. 2 Further,
we interpret 8 CFR 243.1 as indicating that it is incumbent upon
the special inquiry officer to include an alternate order of deportation in his order.
                                   8 CFR 243.1
                            Final Order of Deportation
  Except as otherwise required by section 242 (c) of the Act for the specific
purposes of that section, an order of ,deportation, including an alternate
order of deportation coupled with an order of voluntary departure, made by
the special inquiry officer in proceedings under Part 242 of this chapter
shall become final upon dismissal of an appeal by the Board of Immigration
Appeals, upon waiver of appeal, or upon expiration of the time allotted for
an appeal when no appeal is taken ... (emphasis supplied)
   As in the instant case, the granting of voluntary departure
without an alternate order of deportation leaves the proceedings
unresolved and incomplete. We point out also that the District
Director is charged with the duty under 8 CFR 243.2 of carrying
out the deportation of aliens found deportable by the issuance of
a warrant of deportation. In the instant case he is powerless to
act since there has been no final administrative order of deportation on which a warrant could be based, although respondent has
been found deportable as charged.
   We shall remand the case for the special inquiry officer to enter
a proper order in accordance with this opinion. The grant of vol-
 2   See Matter of lrie, 

 (B.I.A., 1963).

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untary departure must provide for a definite time within which
to depart and be coupled with an alternate order of deportation
in the event respondent does not depart within that time. If respondent desires any extension of the time within which to depart, her request should be made to the District Director, who
has the sole authority under 8 CFR 244.2 to grant such an extension.
   The record reflects that the respondent requested the discretionary relief of temporary withholding of deportation to Cuba
pursuant to section 243(h), Immigration and Nationality Act, but
the special inquiry officer, although stating that he would look
upon the request with favor, did not act on it, undoubtedly because his grant of indefinite voluntary departure had the same effect of allowing respondent to remain in the United States. Since
the special inquiry officer's order will now contain an alternate
order of deportation, we will direct that the special inquiry officer
now give consideration to the application for withholding of deportation and incorporate his finding in his order.
   ORDER: It is ordered that the case be remanded to the special
inquiry officer for further proceedings in accordance with this
opinion.




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